Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(SC) 371

SUPREME COURT OF INDIA
Sanjiv Khanna, M.M. Sundresh, JJ.
State of Rajasthan – Appellant
Versus
Asharam @ Ashumal – Respondent
Criminal Appeal No. 1156 of 2023 (Arising Out of Special Leave Petition (Criminal) No. 2044 of 2022)
Decided on : 17-04-2023

Advocates appeared:
For the Petitioner(s): Dr. Manish Singhvi, Sr. Adv. Mr. Sandeep Kumar Jha, AOR Mr. Ashok Basoya, Adv. Mr. Arpit Prakash, Adv.
For the Respondent(s): Mr. Anish R. Shah, AOR

IMPORTANT POINTS
Additional evidence – Touchstone of when additional evidence at appellate stage may be taken on record is not impossibility or inability to pronounce judgment in its absence, but whether there would be a failure of justice without such additional evidence.
(2) Recall of witness – Request for recall should be bona fide and is to be balanced carefully with relevant considerations, including hardship to witness and delay of proceedings.

Headnote:
(A) Criminal Procedure Code, 1973 – Section 391 – Additional evidence – Touchstone of when additional evidence at appellate stage may be taken on record is not impossibility or inability to pronounce judgment in its absence, but whether there would be a failure of justice without such additional evidence – This discretion is not to be exercised lightly but requires caution and care as it is to be exercised only in cases when appellate court finds, on good and justifiable grounds, that there would be a failure of justice without additional evidence being taken on record – However, once this condition is satisfied, there is no restriction on kind of evidence received, which may be formal or substantial – Right to fair hearing is inherent to concept of due process of law and ascertainment of truth – Equally, there can be failure of justice if this discretion to allow additional evidence at appellate stage is exercised in a routine and liberal manner, without court being satisfied that prayer has imprints of reasonableness and genuineness to at least consider worth, credibility and acceptability of material sought to be brought on record – Power to take additional evidence in an appeal is to be exercised to prevent injustice and failure of justice, and must be exercised for good and valid reasons necessitating acceptance of prayer – Test to allow additional evidence is not satisfied in present case – Impugned judgment set aside. (Paras 14, 15, 17, 18 and 20)
(B) Criminal Procedure Code, 1973 – Section 311 – Recall of witness – While prayer for leading additional evidence should be permitted to correct a bona fide error or otherwise, and a party may be entitled to further opportunity without any fault on part of opposite party, request for recall should be bona fide and is to be balanced carefully with relevant considerations, including hardship to witness and delay of proceedings – Right to speedy trial, including speedy disposal of an appeal, is not exclusive right of accused, but obligation of court towards society in general, and victim in particular – Balance between rights accused and interests and rights of an individual victim and society, without compromising right of accused to a fair trial is essential. (Para 17)
Facts of the case:
Present appeal preferred by the State of Rajasthan takes exception to the judgment dated 10.02.2022 passed by the High Court of Rajasthan at Jodhpur1, allowing the application filed by the respondent – Asharam @ Ashumal under Section 391 of Code of Criminal Procedure, 1973, and directing summoning and recording of evidence of Ajay Pal Lamba, who was posted as Deputy Commissioner of Police (West), Jodhpur, Rajasthan in August 2013 and has written a book “Gunning For The Godman: The True Story Behind Asaram Bapu’s Conviction”. Respondent has been convicted for the offences under Sections 370(4), 342, 354-A, 376(2)(f), 376-D, 506, 509/34 and 120-B of the Indian Penal Code, 1860, Sections 23 and 26 of the Juvenile Justice (Care and Protection of Children) Act, 2000, and Sections 5(f)/6, 5(g)/6, and 8 of the POCSO Act. He stands sentenced to undergo rigorous imprisonment for different periods, and life imprisonment for the remainder of his natural life, with fine and default stipulations.
Findings of Court:
Observations made in the present judgment are for the disposal of the issues raised, and the criminal appeal will be decided by the High Court without being influenced by any observations and findings recorded herein.
Result : Appeal allowed

JUDGMENT :

Sanjiv Khanna, J.

Leave granted.

2. The present appeal preferred by the State of Rajasthan takes exception to the judgment dated 10.02.2022 passed by the High Court of Rajasthan at Jodhpur, ¹[For short, ‘the High Court’.] allowing the application²[D.B. Criminal Misc. Application No. 1 of 2021 in D.B. Criminal Appeal No. 123 of 2018.] filed by the respondent – Asharam @ Ashumal under Section 391 of the Code of Criminal Procedure, 1973,³[For short, ‘Cr.P.C.’,] and directing summoning and recording of evidence of Ajay Pal Lamba, who was posted as Deputy Commissioner of Police (West), Jodhpur, Rajasthan in August 2013 and has written a book “Gunning For The Godman: The True Story Behind Asaram Bapu’s Conviction”, ⁴[For short ‘the Book’.]

3. The respondent – Asharam @ Ashumal was charge-sheeted on 06.11.2013, and after a trial lasting almost five years, vide judgment dated 25.04.2018 passed by the Magistrate, Special Court, Protection of Children from Sexual Offences Act, 2012,⁵[For short, ‘POCSO Act’], Jodhpur, Rajasthan, he has been convicted for the offences under Sections 370(4), 342, 354-A, 376(2)(f), 376-D, 506, 509/34 and 120-B of the Indian Penal Code, 1860, Sections 23 and 26 of the Juvenile Justice (Care and Protection of Children) Act, 2000, ⁶[For short, ‘JJ Act’] and Sections 5(f)/6, 5(g)/6, and 8 of the POCSO Act. He stands sentenced to undergo rigorous imprisonment for different periods, and life imprisonment for the remainder of his natural life, with fine and default stipulations.

4. Earlier, the victim had given a handwritten complaint (Exhibit P-4) on the intervening night of 19/20.08.2013 at 11:55 p.m., pursuant to which ‘Zero’ F.I.R. dated 20.08.2013 (Exhibit P-11) was registered at Police Station Kamla Market, Central District, Delhi at 2:50 a.m. The victim was spoken to and had interacted with a Non- Governmental Organization, ⁷[For short, ‘N.G.O.’], and a report dated 20.08.2013 (Exhibit D-4) was prepared by the N.G.O. On the same day, the victim had appeared before the Metropolitan Magistrate in New Delhi, and her statement under Section 164 of the Cr.P.C. (Exhibit P-7) was recorded. As the offence was committed in Jodhpur, the investigation was transferred to the Police Station of competent jurisdiction and, consequently, F.I.R. No. 122 of 2013 (Exhibit P- 106) was registered at Police Station Mahila Pashchim, Jodhpur District, Rajasthan on 21.08.2013 at 6:15 p.m.

5. The investigation in the case was conducted by Chanchal Mishra, the then Assistant Commissioner of Police, ⁸[For short, ‘ACP’,] (West), Jodhpur, Rajasthan, who has deposed as PW-43. As per the prosecution’s version, the Investigating Officer – Chanchal Mishra (PW-43) had recorded the statement of the victim under Section 161 of the Cr.P.C. on 21.08.2013. For some reason, the entire statement of the victim under Section 161 of the Cr.P.C. recorded on 21.08.2013 has been marked as Exhibit D-2⁹[Whether the entire statement recorded under Section 161 of the Cr.P.C. can be exhibited, and can be read in evidence is not the subject matter of the present appeal and we make no comments and observations on this aspect.]. The Investigating Officer – Chanchal Mishra (PW-43) was examined and cross-examined on as many as eleven dates between 09.07.2015 and 03.03.2016. The victim, who has deposed as PW-5, was examined and cross-examined on eleven dates between 11.04.2014 and 13.06.2014.

6. As a limited issue arises for our consideration, and keeping in mind that the appeal preferred by the respondent – Asharam @ Ashumal is pending adjudication before the High Court, we would refrain from referring to the evidence in detail, and avoid expressing any opinion on merits, albeit we would confine ourselves to the record on the issue raised before us.

7. In 2021¹⁰[The exact date of filing the application is not available on record.], the respondent – Asharam @ Ashumal filed an application under Section 391 of the Cr.P.C., ¹¹[For short, ‘the application’,] in whic